Allowed

FPA-PMLA-3049/KOL/2019 of Ideal Unique Realtors Pvt. Ltd. v/s The Deputy Director, Directorate of Enforcement, Kolkata

ATFP16 Sept 2019FPA-PMLA-3049/KOL/2019

Case brief

AI extract

What is this about?

The Tribunal set aside the adjudicating authority's order confirming provisional attachment of the appellant's properties under PMLA. The Court held that the appellant, who was not charge-sheeted, could release the assets by undertaking to deposit the entire alleged proceeds of crime in installments.

What did the court decide?

The impugned order confirming attachment and the provisional attachment order dated 01.10.2018 were set aside; properties released upon encashment of post-dated cheques.

FPA-PMLA-3049/KOL/2019 of Ideal Unique Realtors Pvt. Ltd. v/s The… — Money Laundering | ATFP (2019)

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APPELLATE TRIBUNAL FOR SAFEMA, FEMA, PMLA, NDPS & PBPT ACT AT NEW DELHI

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DATE OF DECISION: 16.09.2019

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MP-PMLA-6212/KOL/2019 (Misc.) MP-PMLA-6077/KOL/2019 (COD) MP-PMLA-6056/KOL/2019 (Stay) FPA-PMLA-3049/KOL/2019 Ideal Unique Realtors Pvt. Ltd. … Appellant

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Versus

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The Deputy Director, Directorate of Enforcement, Kolkata … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Shri Farooq Razack, Sr. Advocate Shri Shubail Farook, Advocate Shri Manoj Malhotra, Advocate Shri Hiren Dasan, Advocate For the respondent : Shri Vikas Garg, Advocate CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN JUDGMENT

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FPA-PMLA-3049/KOL/2019

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The appellant has filed the appeal against the order dated 14.03.2019 passed in OC 1047 of 2018 by the Adjudicating Authority, PMLA, New Delhi. Various movable and immovable properties, as described in the impugned order which were provisionally attached by order dated 01.10.2018 have been directed to be confirmed.

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The immovable property being super built up office space measuring 28240 sq ft in the 24^th floor of premises being 10, East Topsia Road, Kolkata 700046 along with 38 car parking space which had been provisionally

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FPA-PMLA-3049/KOL/2019

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attached and subsequently confirmed by the Adjudication Order dated 14.03.2019 impugned herein, is directed to be released to the Appellant after all attachments are removed therefrom.

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Reply to the appeal has been filed by the respondent.

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Admittedly the Appellant and his family members were at no point of time involved directly or indirectly in any Ponzi Scheme or money mobilization or collection of deposits from the public for running of such scheme. The appellant is a builder of both national and international repute and is involved only in the business of real estate.

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From the complaint filed and Show Cause notice it is evident that no case under any Scheduled Offence had been filed against the Appellant before any Court of law and that the investigation and subsequent attachment order had been passed on the basis of the case instituted against Rose Valley Group of Companies and Sri Goutam Kundu, who is the Chairman of the Rose Valley Group of Companies in the present case.

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The proceedings under Section 5 and Section 8 of PMLA had been initiated against the Appellant on the ground that he and his family members are beneficiaries of total value of proceeds of crime amounting to Rs.15,41,94,529/.

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The allegations are made on the basis for issuance of the show cause notice are that M/s. Real Estate and Land Bank India Ltd., (a company of Rose Valley group) had entered into a purchase agreement with M/s. Ideal Unique Realtors Private Limited (in which the appellant is a Director) and others on 26^th December, 2012 for purchase of space having super built up area of 28240 sq. ft. alongwith 38 car parking spaces at premises number 10, East Topsia Road, Kolkata – 700046 and had made payment of Rs.16,41,32,384/- out of the total agreed upon price of Rs. 41,17,95,745/FPA-PMLA-3049/KOL/2019 Page 2 of 8

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inclusive of service tax to M/s. Ideal Unique Realtors Private Limited. In the said show cause it was also alleged that M/s. Ideal Unique Realtors Private Limited had cancelled the agreement as M/s. Real Estate and Land Bank India Limited had not made payment of the balance amount as per the agreement. It was further alleged that the sum of Rs.16,41,32,384/- paid by M/s. Real Estate and Land Bank India Limited to M/s. Ideal Unique Realtors Private Limited. Hence the instant show cause was issued to the appellant.

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It has been further alleged in the complaint and show cause notice that the appellant Srawan Kumar Himatsingka, in his further statement dated 07.07.2017, had, inter alia, stated that Rs,1,00,00,000/- (Rupees One Crore only) had already been deposited in their account no. 2012182460 maintained with Kotak Mahindra Bank Limited, Apeejay House, 15, Park Street, Kolkata 700016 and the balance amount of Rs. 15,41,94,529/- would be deposited in that account.

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The appellant in his further statement dated 08.02.2018, had inter alia, admitted receipt of the amount of Rs. 16,41,94,529/- from M/s. Real Estate and Land Bank India Limited and again prayed for some more time to deposit the balance amount. However, no further deposit had been made on behalf of M/s. Ideal Unique Realtors Private Limited inspite of lapse of a considerable time and it appears that reasonable efforts have not been made by the appellant herein for depositing the balance amount.

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The amount of Rs. 16,41,94,529/- paid by M/s. Real Estate and Land Bank India Limited for purchase of office space of 28240 sq. ft alongwith 38 car parking spaces was definitely a portion of the proceeds of crime either collected and accrued in the hands of M/s. Real Estate and Land Bank India Limited or transferred from some other company / companies of the Rose Valley Group.

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FPA-PMLA-3049/KOL/2019

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It is believed that the amount of Rs. 16,41,94,529/- paid by M/s. Real Estate and Land Bank India Limited to M/s. Ideal Unique Realtors Private Limited represent a portion of the proceeds of crime within the meaning of Section 2(1)(u) of PMLA, 2002 and is, therefore, liable for attachment under the provisions of the Act.

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It was stated on behalf of the appellant that it was on the basis of said transaction by the company of the appellant that he had been falsely implicated in the instant case. The Appellant states that he had no manner of connection and/or relation with the business activities of Shri Goutam Kundu or his group of companies, save and except, entering into an agreement for sale of super built up area of 28240 sq.ft alongwith 38 car parking spaces at premises number 10, East Topsia Road, Kolkata – 700046, and receiving advance payment of Rs. 16,41,32,384/-.

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It is stated on behalf of the appellant that the appellant had no role to play in respect of the business of Shri Goutam Kundu or his Group of companies. The said sale of property was in normal course of business in terms of agreement dated 26.12.2012 and all payments in respect thereof were received from the intending purchaser by cheque. On the said date of agreement, no case had been initiated either against Shri Goutam Kundu or any of his companies, more particularly M/s. Real Estates and Land Bank India Limited. The sale of a lawful property to any buyer for lawful consideration is not an offence under any of the laws of the land.

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It is stated that the sole basis for initiating a proceeding against the appellant is the agreement for sale of the said property, which was made in a lawful and bona fide manner.

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FPA-PMLA-3049/KOL/2019

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Page 4 of 8

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The said property was being developed by the appellant on strength of Development Agreement entered into between M/s. Ideal Unique Realtors Private Limited and Javed Ahmed Khan, Ms. Shaheen Asad, Aquil Ahmed Khan, Parvez Ahmed Khan, Yasmeen Hossain and Shamim Akhtar.

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It is specifically stated that the appellant had entered into a lawful agreement with M/s. Real Estate and Land Bank India Limited for sale of super built up office space measuring 28240 sq ft in the 24^th floor of premises being 10, East Topsia Road, Kolkata 700046 alongwith 38 car parking space. The total value of the agreement was Rs. 41,17,95,745/-. M/s. Real Estate and Land Bank India Limited only deposited an amount of Rs. 16,41,32,384/- out of the total agreed amount of Rs. 41,17,95,745/-. Despite repeated reminders, M/s. Real Estate and Land Bank India Limited failed to deposit the balance amount of Rs. 24,76,63,361/-, and as such, the appellant was forced to terminate the agreement for sale dated 26.12.2012 and was entitled to appropriate the sums received by way of advance as per law. However, on coming to learn that the money acquired by Rose Valley Group of Companies was by way of ponzi scheme by duping common people, the appellant’s Chairman being a respectable citizen voluntarily agreed to deposit a sum of Rs. 16,41,94,529/- with the Enforcement Directorate and to prove his bona fide had already deposited a sum of Rs. 1 crore lying in his bank account maintained in Kotak Mahindra Bank Limited being account no. 2012182460. It is stated that due to adverse market conditions caused by demonetization and introduction of GST regime, the appellant could not make the balance payment of Rs. 15,41,94,529/- in time. Subsequently, the officers of the appellant visited the office of the Enforcement Directorate, Kolkata and expressed their willingness to make payment of the outstanding amount in installments but the officers of the Enforcement Directorate failed

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FPA-PMLA-3049/KOL/2019

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to provide the name of the authority in whose name the cheque was to be deposited.

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The appellant has filed the detailed affidavit by narrating the facts and giving undertaking that the entire alleged proceeds of crime shall be deposited with the respondent.

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The appellant has also filed the application for placing the post dated cheques for remaining entire amount.

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The appeal was heard as both counsel made their submissions.

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Earlier the appellant had filed a petition on July 5, 2019 undertook to make payment of a sum of Rs.1,00,00,000/- only to the Respondent and further undertook to liquidate the balance amount in 13 Equal Monthly Installment of Rs.1,00,00,000/- (Rupees One Crore only) per month and pay the last installment of Ra.1,41,94,529/- (One Crore Forty One Lakh Ninety Four Thousand Five Hundred and Twenty Nine only) on October 26, 2020. Now we undertake to make payment of Rs.2,00,00,000/- only on 09.09.2019 to the respondent and undertake to liquidate the balance in 08 equal Monthly installment of Rs.1,50,00,000/- only per month and pay the last installment of Rs.1,41,94,529/- (One Crore Forty One Lakh Ninety Four Thousand Five Hundred and Twenty Nine only) on June 09, 2020.

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Pursuant to the aforesaid application and in order to prove its bona fide the applicant is enclosing photocopy of the following cheques, drawn in favour of the Deputy Director, Enforcement Directorate, Kolkata. The original cheques were placed on record along with the application filed on 09.09.2019. The date as directed by this Tribunal of the cheques are as followed:-

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FPA-PMLA-3049/KOL/2019

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Date	Cheque No.	Drawn on	Amount (Rs.)
09.09.2019	187251 Bank Road,	of India, J.L. Nehru Kolkata	2,00,00,000.00
09.10.2019	187252 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.11.2019	187253 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.12.2019	187254 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.01.2020	187255 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.02.2020	187256 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.03.2020	187257 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.04.2020	187258 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.05.2020	187259 Bank Road,	of India, J.L. Nehru Kolkata	1,50,00,000.00
09.06.2020	187260 Bank Road,	of India, J.L. Nehru Kolkata	1,41,94,529.00

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That appellant further undertakes not to default in making payments as enumerated in preceding paragraphs. In view of the above undertaking, the impugned order dated 14.03.2019 passed in OC 1047 of 2018 by the Learned Adjudicating Authority, PMLA, New Delhi, and the provisional attachment order dated 01.10.2018 be set aside by this Tribunal.

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As already mentioned that the original cheques are already filed and placed on record of this file. The respondent is at liberty to obtain the same from the Registrar of this Tribunal. As far as the attachment of properties are concerned, the said property will be released after the entire payment against the post dated cheques are encashed in favour of the respondent. Once the said entire alleged proceed of crime is received by the respondent, the impugned order dated 14^th March, 2019 as well as provisional attachment order dated 01^st October, 2018 shall be modified/quashed. The present appellant who has allegedly bonafide received alleged proceeds of crime in question. It is also not denied by the learned counsel for the respondent that the appellant has not been charge sheeted under the FPA-PMLA-3049/KOL/2019 Page 7 of 8

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schedule offence or any prosecution complaint has been filed against the appellant. In view of the undertaking and return of the alleged proceeds of crime to the respondent. The present appeal is accordingly dispose of.

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The attachment of the properties shall continue till the entire payment of alleged proceeds is received by the respondent.

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No costs.

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(Justice Manmohan Singh) Chairman

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New Delhi, 16^th September, 2019

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‘A’

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FPA-PMLA-3049/KOL/2019

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FPA-PMLA-3049/KOL/2019 of Ideal Unique Realtors Pvt. Ltd. v/s The Deputy Director, Directorate of Enforcement, Kolkata

Case brief

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FPA-PMLA-3049/KOL/2019 of Ideal Unique Realtors Pvt. Ltd. v/s The Deputy Director, Directorate of Enforcement, Kolkata

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